No Consensus on Fixing India’s Rape Laws

A demonstrator demanding justice following the rape of the 23 year old woman in New Delhi, Dec. 24.

Widespread outrage in India over the brutal gang-rape of a 23-year-old woman in New Delhi has led to a chorus of calls to toughen the nation’s rape and sexual assault laws and speed up justice for victims. But legal experts differ on what exactly should be done and whether capital punishment for the most heinous cases of rape would be a smart idea.

Under India’s criminal code, the maximum sentence a judge can hand to a convicted rapist is unclear to say the least. The sentence can be seven years to life imprisonment, or up to 10 years, the law states. For gang-rape, rape of a pregnant woman and other especially egregious offenses, those found guilty face 10 years to life. And in all cases, a court may, “for adequate and special reasons,” impose sentences lower than statutory minimums, though the Supreme Court has said that should only be done in very special situations.

The government is under pressure from activists and lawyers to allow tougher maximum sentences. Many want the imposition of the death penalty in particularly shocking cases like the one in Delhi on Dec. 16, in which the victim was gang-raped for nearly an hour on a chartered bus, beaten with metal rods, stripped down and thrown onto the road with her male companion, according to police.

“Imposition of the death penalty would be a major deterrent,” said Pinky Anand, a Supreme Court lawyer who has previously provided recommendations to the government on rape and sexual assault laws. “When you’ve done such an inhuman act, you deserve to face the maximum the law can envisage.”

The Indian government on Monday said it has formed a panel of three legal experts, headed by former chief justice of India, J.S. Verma, to review possible amendments to rape laws, including stricter punishment. The committee will submit its report within 30 days, it added.

Other women’s activists and legal experts say instituting capital punishment for rape would be counter-productive and could make it harder to get rape convictions. Ranjana Kumari of the Centre for Social Research said instituting the death penalty could even endanger women further because assailants may kill their victims “to wipe out the evidence.”

However, Ms. Kumari said she understands the emotional appeal of the death penalty to the young activists who poured into central Delhi’s streets over the weekend to protest the recent rape. The protests were more subdued on Monday as the government cordoned off large sections of the city center, invoked an emergency law to ban groups of more than four people from congregating and shut down public transportation in some areas.

Ms. Kumari, who has also submitted recommendations to the government, says India should create fast-track courts for rape cases so that trials take two to three years instead of seven to nine years as is typical now. Some 40,000 rape cases are pending in Indian courts, she said.

Ms. Kumari pointed to another case that shook the capital back in 2003, when a 17-year-old woman was robbed and raped by guards near the presidential palace. The Delhi High Court’s final ruling in that case, upholding life sentences for the offenders, came just this year.

She and several other activists also said there should also be a public registry of sexual offenders. “They won’t get a job or an apartment – they’ll be totally ostracized,” Ms. Kumari said.

Many activists also are pushing to broaden the law to cover sexual assaults more generally – including groping, violent attacks that aren’t rape and other inappropriate behavior toward women that’s rampant throughout India. “People who indulge in sexual assault can evolve into rapists – it’s deviant behavior that multiplies. You need to stop it at the earliest,” Ms. Anand said.

Colin Gonsalves, a Supreme Court lawyer and founder of Human Rights Law Network, says increasing the severity of punishment for rape won’t address the biggest underlying problem: the fact that half of rape cases never even make it to court because police don’t file complaints or victims come under pressure to withdraw complaints in exchange for money. “A large number of rape cases aren’t even tried,” he says. “That is the main failure of the criminal justice system.”

Mr. Gonsalves said fast-track courts won’t improve the process of dispensing justice in rape cases because it will force an under-staffed judiciary to make rushed decisions. Instead, he called for the government to increase spending on the judicial system so that normal courts are equipped to handle the large number of rape cases. The country has one-fifth the judges it needs to deal with all its litigation, he said.

Amol is an India Correspondent for The Wall Street Journal. Follow him on Twitter @AmolSharmaWsj.